White House reiterates its support for cellphone unlocking. Now what?

The White House drew plaudits from Internet advocacy groups Monday for supporting a petition to make cellphone unlocking legal. But consumers shouldn’t get their hopes up about being free to use cheaper foreign SIM cards overseas or selling their unlocked used smartphones on EBay. The Obama administration had already taken a strong position in favor of cellphone unlocking, and it’s not clear what, if anything, changed with Monday’s action.

At issue is the Librarian of Congress’ decision last year on whether consumers should be allowed to circumvent the digital locks that tie their phones to a particular mobile network. Section 1201 of the 1998 Digital Millennium Copyright Act bars people from circumventing locks that protect copyrighted material from piracy, but it lets the librarian grant temporary exemptions every three years for noninfringing uses. After granting exemptions twice to let people unlock the phones they own, the librarian reversed course last year, declaring that proponents of unlocking hadn’t met the burden of proof.

The decision, which took effect in January, drew howls from across the Internet (and from The Times’ editorial board), and a petition asking the White House for help drew more than 114,322 digital signatures. R. David Edelman, the president’s senior advisor for Internet, Innovation, & Privacy, issued an unequivocal statement Monday supporting the petition.

“The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cellphones without risking criminal or other penalties,” Edelman wrote. “In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smartphones. And if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network. It’s common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers’ needs.”

Yet the administration took the same position last year when it urged the Copyright Office in no uncertain terms to renew the exemption for cellphone unlocking and expand it to all mobile devices. Neither Maria Pallante, the Registrar of Copyrights, nor James H. Billington, the Librarian of Congress, was persuaded. And because they work for Congress, not the president, the White House can’t overrule them on this or any other issue.

In other words, as daffy and divorced from reality as the cellphone unlocking ruling may have been, there’s not a lot the White House can do about it. The administration conceded as much in its response Monday, laying out three paths forward. The first is for Congress to clarify that consumers can’t be stopped, by criminal law or digital locks, from switching carriers “when they are no longer bound by a service agreement or other obligation.” The second is for the Federal Communications Commission to address cellphone unlocking in the context of “promoting mobile competition and innovation.” And the third is for mobile providers to voluntarily help the people who buy phones from them to “fully reap the benefits and features they expect when purchasing their devices.”

Congress obviously has the authority to amend copyright law to grant consumers a permanent right to unlock the devices they own. Whether it does so depends on how much opposition they get from the phone and entertainment companies that argued against renewing the unlocking exemption last year. As the debate over SOPA and PIPA illustrated, Congress won’t necessarily rush to strengthen the law’s protections against copyright infringement. But members have also been loath to weaken the protections that already exist.

The FCC’s authority here isn’t so obvious. Chairman Julius Genachowski issued a statement Monday indicating his unhappiness with the librarian’s decision but not pledging to find a way around it:

“From a communications policy perspective, this raises serious competition and innovation concerns, and for wireless consumers, it doesn’t pass the common-sense test,” Genachowski said. “The FCC is examining this issue, looking into whether the agency, wireless providers or others should take action to preserve consumers’ ability to unlock their mobile phones. I also encourage Congress to take a close look and consider a legislative solution.”

Sina Khanifar, the entrepreneur behind the petition (and the original exemption for cellphone unlocking), expressed confidence in the White House’s ability to get the problem fixed. But he also said that the “real culprit” was Section 1201 of the DMCA, which he said “needs to be either repealed or amended, as it’s very broadly written and generally unnecessary.” Among other things, Khanifar said, Section 1201 “prevents making backups of DVDs for personal use (with no copyright infringement), prevents screen reading technology for e-books for the blind, and prevents unlocking and jailbreaking phones, game consoles and tablets.”

On the other hand, Section 1201 also makes it illegal to circumvent the access controls on DVDs, e-books and video games to make bootlegged copies for sale on the street or swapping online. It also makes it illegal to manufacture or sell devices whose main purpose is to circumvent the digital locks on copyrighted material. Any effort to remove or significantly weaken Section 1201 would run into a buzz saw of opposition from companies that rely on technical protections for their intellectual property.

Nevertheless, Khanifar hinted that he would soon launch an effort to change Section 1201. Meanwhile, a former Republican congressional staffer active on copyright issues, Derek Khanna, said he was launching a website to keep the pressure on Congress to lift the ban on cellphone unlocking.

“A free society should not require its citizens to petition their government every three years to allow access to technologies that are ordinary and commonplace,” Khanna said in a statement. “Innovation cannot depend upon a permission-based rule-makings requiring approval every three years from an unelected bureaucrat. A free society should not ban technologies unless there is a truly overwhelming and compelling governmental interest.”

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